The 1855 Reservation: M-Opinion Says Boundaries Are Intact

Published
August 1st, 2017

No “clear Congressional intent” to diminish or disestablish the reservation

The 1855 Mille Lacs Reservation, which comprises three northern Mille Lacs County townships totaling 61,000 acres (including the cities of Isle, Wahkon and part of Onamia), is an ongoing source of controversy in the region.

In 2002, Mille Lacs County led suit in federal court seeking a declaratory judgment that the reservation had been disestablished, but the case was thrown out, after the County spent over a million dollars on legal help. Judge James Rosenbaum said the County failed to show that there was any harm done by the dis- agreement, and the Supreme Court refused to hear an appeal.

Most recently, a disagreement over the reservation contributed to the County’s decision to rescind a law enforcement agreement with the Mille Lacs Band, first reached in 1991, that authorized Mille Lacs Tribal Police to enforce Minnesota law on the reservation.

The County’s resolution rescinding the agreement stated in part: “Mille Lacs County rejects the conclusions of the M-Opinion and the Mille Lacs Band of Ojibwe’s use of the criminal justice system to address the disputed boundary of the Mille Lacs Indian Reservation.”

The “M-Opinion” is a legal opinion by the U.S. Department of Interior that the reservation is still intact, a position the Band has always held, but which the County and the State of Minnesota have disputed.

The M-Opinion (M-37032) was released in January of 2016 as part of the Department of Justice’s decision to grant the Band’s re- quest for additional federal law enforcement help under the Tribal Law and Order Act (TLOA).

That decision played a part in the County’s decision to pull out of the agreement. Mille Lacs Band Solicitor General Todd Matha said in 2016 that the County had begun threatening to pull out of the agreement as soon as the Band applied for concurrent federal jurisdiction under TLOA.

The County and Band have been in state-led mediation for several months but announced in June that mediation had come to an end with no agreement.

Although the details of mediation between the County and the Band remain confidential, it can be assumed that disagreements over the Reservation played a role in the failure of the two sides to agree — just as the Reservation was the main sticking point when the agreement fell apart in 2007.

During the next several months, Ojibwe Inaajimowin will re- view the “M Opinion” and the history of the 1855 Mille Lacs Reservation, beginning with the negotiations of the treaty itself and continuing with stories about the Treaties of 1863 and 1864, the Nelson Act of 1889, and further attempts to disestablish or deny the existence of the Reservation.

The main point of the M Opinion is that the 1855 Reservation still exists and was not diminished or disestablished by subsequent treaties or acts of Congress.

In the introduction to the M Opinion, the author, Solicitor Hilary C. Tompkins, presents an outline and lays out the argument:

“This opinion first provides a summary of the factual history surrounding the Mille Lacs Reservation and explanations of the Supreme Court jurisprudence on diminishment or disestablishment of Indian Reservations. The opinion then analyzes the relevant treaties, congressional acts, legislative history, and factual circumstances regarding the Mille Lacs Reservation in light of the diminishment/disestablishment framework and ultimately concludes that the Mille Lacs Reservation boundaries, as established by the 1855 Treaty, remain intact. The 1863 and 1864 Treaties, as well as the 1889 Nelson Act, fail to evince a clear Congressional intent to disestablish the Reservation and, in fact, guaranteed the Band continuing rights to its Reservation.”